I agree with most of the points Eugene made on this subject in his postsbelow. In particular, it's important to remember 1) that many other valuable institutions also have important downsides, and 2) that even if we need a strong federal role for the protection of certain kinds of minority rights, that does not mean we should have unlimited federal power over all or most other policies.

I would like to add three points to Eugene's analysis:

I. The Feds are Tainted Too.

There is no question that state governments have often oppressed minorities, particularly African-Americans. On the other hand, the federal government also has a far from perfect record in this area. Consider, for example, the federal internment of Japanese-Americans during World War II, and the feds' decades-long persecution of the Mormons during the nineteenth century. The states are "tainted" by their history, but so too is the federal government. Perhaps one can argue that the states are "more" tainted because they supported slavery, the single biggest human rights violation in American history. However, the federal government also played an important role in promoting slavery, for example through its enforcement of the Fugitive Slave Acts. If the history of state repression of minorities taints the argument for federalism, then the history of federal government repression taints the case for unlimited federal power.

II. Federalism vs. States' Rights.

There are important differences between the system of federalism advocated by modern scholars sympathetic to limits on federal power and the system of "states' rights" associated with the southern states' defense of slavery and later Jim Crow. The differences in are covered in some detail in my 2004 article "Federalism vs. States' Rights," (with John McGinnis). Perhaps the most important is the fact that an effective system of federalism requires citizen mobility between states, so that people can "vote with their feet" against jurisdictions that adopt harmful or oppressive policies toward them. This implies the need to prevent states from adopting policies that restrict interstate mobility and in effect hold people hostage. Obviously, slavery is a clear example of such a policy and Jim Crow also included efforts (such as peonage laws) to restrict black mobility. In addition, a well-functioning system of decentralized federalism requires limits on the power of states to assert an extraterritorial reach for their laws; otherwise, it would never be possible to vote with your feet against a particular state's legal regime. This point, too, has important implications for the history of slavery and Jim Crow, as southern states sought to assert an extraterritorial reach for their laws restricting the rights of blacks (e.g. - the Fugitive Slave Clause).

To the extent that modern defenders of federalism agree (as most do) that states must be prevented from restricting their citizens' mobility and from (in many cases) applying their laws extraterritorially, they are arguing for a very different system than that defended by the southern states in the eras of slavery and Jim Crow.

III. Reassessing the History of Minority Rights in America.

The claim that the history of slavery and Jim Crow "proves" that federalism is bad for minorities greatly oversimplifies the actually history of minority rights in the United States. It is certainly true that there were two periods in our history (roughly 1860-80, and 1940-70) when states' rights claims were used to counter federal efforts to protect the rights of African-Americans against abuse by state governments. To the extent that such efforts were successful, they certainly represent an important cost of federalism.

However, the conventional story that federalism is bad for minority rights overlooks other, at least equally lengthy, periods in American history when a unitary federal policy would have been worse for minority rights than federalism. At the time of the Founding, a unitary policy on slavery would probably have meant a requirement that slavery be legal all around the nation, since all thirteen original states had legal slavery. During most of the antebellum period (roughly 1790-1860) proslavery forces had much more power in Congress and the executive branch than antislavery ones, and a unitary policy on slavery and/or the rights of free blacks at that time would probably
meant a compromise far closer to the slave state laws of the day than the free state ones. In those areas where the federal government did have authority, it tended to use it to promote slavery more than to restrict it. For example, the federal government facilitated the recovery of escaped slaves through a series of Fugitive Slave Acts (which some northern states resisted on "states' rights" grounds), and slavery was legal in the federally ruled District of Columbia until 1862. Indeed, the election of Lincoln in 1860 was important precisely because it represented the first time in decades that the presidency and Congress were both largely controlled by a (relatively) antislavery party.

During the post-Reconstruction Jim Crow era (roughly 1880-1940), a unitary policy on black rights would also probably have left blacks worse off than they were under federalism. At that time, southern whites cared far more about keeping blacks down than most northern whites cared about protecting their rights (and a significant minority of northern whites actually endorsed the southern position). Therefore, a unitary federal policy on black rights during this time would likely have led to a system slightly less restrictive than that which existed in the South, but far more oppressive than that which existed in northern and western states. At the very least, northern blacks, like southern ones, would probably have been denied the right to vote. The absence of relatively more favorable policies in northern states would have prevented blacks from "voting with their feet" against the South, an option that millions took advantage of from about 1900 to 1960; moreover, if blacks could not vote in the North, the incentive of northern white politicians to support federal intervention against Jim Crow would have been greatly diminished, and the landmark federal civil rights legislation of the 1960s might not have come as soon as it did.

Today, it is far from clear whether African-Americans are better off with more federal power or less. Arguably, black voters have greater power over many state and local governments where they form a large proportion of the population than they do over Congress. But even if African-Americans are, on net, better off with a more powerful federal government, that is not necessarily true of other minorities. Gays and lesbians, for example, benefit greatly from federalism and decentralization, as Albany Law School Professor Stephen Clark shows in this article (see also my own analysis here).

Ultimately, both state and federal governments can threaten the rights of minorities. Therefore, neither should be allowed unlimited power. The history of slavery and Jim Crow does not provide a clear case for either state or federal power. Both levels of government can repress minorities, and both need to be constrained.

UPDATE: Some commenters question my argument that a unitary federal policy on race in the post-Reconstruction era (roughly 1880-1940) would have been worse for African-Americans than federalism. Some of the historical issues involved are too complex to fully address here (though I make brief comments of my own in the notes). But the best window we have on what a unitary national policy on race would have been during this era is the way that federal government of that period addressed racial issues in those policy areas that were incontestably under its control. For example, the District of Columbia was under complete congressional control, and it had the same kinds of Jim Crow policies as the South (with congressional approval). The federal civil service was officially segregated under the Wilson Administration in the 1910s, and remained so under later Republican administrations. Federal immigration policy barred most nonwhite immigrants from entering the country under the Chinese Exclusion Act, the "Gentlemen's Agreement" barring Japanese immigration, and other related legislation. Finally, federal control in overseas territories such as Puerto Rico, the Virgin Islands, and others, did not exactly result in enlightened racial policies there (though full-blown Jim Crow could not be imposed because of the small size of the white population in those areas). We cannot know with certainty what the feds would have done had they had more power over racial issues during that era. But, based on their record, it seems likely that they would have done more to promote Jim Crow than undermine it.

UPDATE #2: I should note that I was slightly off in my statement that every state in the Union was a slave state at the time of the Founding (1787). The state of Massachusetts had abolished slavery by judicial fiat in 1783. Several other northern states had enacted laws mandating gradual emancipation of slaves, though most of them still had substantial slave populations as of 1787 and for years thereafter. On the other hand, two of the largest and politically most powerful northern states - New York and New Jersey - did not enact emancipation laws until 1799 (NY) and 1804 (NJ) respectively. In many of the other northern states, emancipation was deliberately made gradual so that slaveowners had a window of opportunity to sell their slaves "down the river" to the South, and thereby avoid the creation of a substantial free black population. Thus, my key point that, in 1787, a unitary national rule on slavery would have probably resulted in nationwide slavery is correct. All but one state was still a slave state; the majority had not enacted any emancipation laws; and many of those that had enacted gradual emancipation laws might not have done so absent the option of selling their slaves down South. Nonetheless, the facts are more complex than I indicated in the initial post, so I want to make sure to correct the mistake. For detailed information on the timing and structure of emancipation in the North (including the facts cited above) see this website.

Today, it is far from clear whether African-Americans are better off with more federal power or less. Arguably, black voters have greater power over many state and local governments where they form a large proportion of the population than they do over Congress. But even if African-Americans are, on net, better off with a more powerful federal government, that is not necessarily true of other minorities.

Realistically, this depends a lot on which state you live in. In a way, the federal government is a sort of moderate position between, say, Massachusetts and Alabama so whether you're better off tilting towards federal power or state power depends on whether you live in Massachusetts or Alabama.

Ilya already responded to what you said in the post when talking about people voting with their feet and the need for citizen mobility. In that world, people would be able to (or can) chose which of those states is best for them, and live there. Thus, having the one "bad" state and the one "good" state is better than having one middleground option (federal control) because everybody can choose the better state rather than the middleground.

Ilya: "At the very least, northern blacks, like southern ones, would probably have been denied the right to vote." Maybe, or maybe not. Any laws, state or federal, explicitly denying blacks the right to vote would have been overturned as blatantly unconstitutional. What the southern states did was to write laws concerning registration and voting procedures that left considerable discretion for local officials, with the tacit understanding that most local officials would use this discretion to block blacks from voting. If Congress had imposed the same laws across the board, many northern local officials would have acted differently. (Not always better - many northern cities were quite segregated, and if Boston registrars had the same discretion as southern election officials, it would have been a very long time before Bostonians of Irish descent could vote.)

What the southern states did was to write laws concerning registration and voting procedures that left considerable discretion for local officials, with the tacit understanding that most local officials would use this discretion to block blacks from voting. If Congress had imposed the same laws across the board, many northern local officials would have acted differently.

Even completely neutral application of literacy tests and poll taxes, among other laws, would have denied the majority of blacks the right to vote in the early twentieth century. Only if northern officials had actually favored blacks (a highly unlikely result at the time) in the application of such laws could this effect have been avoided.

Realistically, a unitary federal policy on voting rights in the early 20th century might have allowed a higher percentage of blacks to vote than in the South, but much lower than in the North. But that would still have left the vast majority of blacks disenfranchised, albeit perhaps only 80-90% as opposed to the 95-99% disenfranchised in most southern states at the time.

The claim that the history of slavery and Jim Crow "proves" that federalism is bad for minorities greatly oversimplifies the actually history of minority rights in the United States.

Pot, meet Kettle. Who claims that "the history of slavery and Jim Crow 'proves' that federalism is bad for minorities"???? If someone indeed claims this, you are just picking out the most extreme version of the argument Orin raised and killing it easily and then claiming victory over the whole body of the argument. But then to complain -- in the same sentence no less! -- about people "oversimplifying" things is what we Jews call Chutzpah.

Lol. No really, he's only trying to help...
And besides, haven't you heard about this oversease experiment we've got going on? It's not just America they've got on this "we're only trying to improve ya" kick.

Even completely neutral application of literacy tests and poll taxes, among other laws, would have denied the majority of blacks the right to vote in the early twentieth century.

Wow! I don't know about poll taxes, but your implicit claim that a "majority" of blacks were illiterate at the turn of the last century is wrong. Fact-check things before you put forward claims that are (probably) based on your own perceptions of members of other races. And don't weasel out of this one by trying to hang your hat on the poll tax; you clearly thought that a majority of blacks were illiterate, and I suggest you ask yourself why you thought that. I hihgly doubt you are at all racist, but I bet your views here are based on popular stereotypes that you have not thought to question because of your political views and the political circles with which you associate.

Daryl Levinson pointed out a problem with the "vote with your feet" argument: for amoral politicians only interested in retaining power, driving people that would vote against them out of their jurisdiction is a feature, not a bug. Thus, "voting with your feet" won't put any pressure on incumbents to change their ways. It might have an effect by altering the national balance of power, but that's not a pro-federalism point...

Realistically, a unitary federal policy on voting rights in the early 20th century might have allowed a higher percentage of blacks to vote than in the South, but much lower than in the North. But that would still have left the vast majority of blacks disenfranchised, albeit perhaps only 80-90% as opposed to the 95-99% disenfranchised in most southern states at the time.

What is this based on? I mean, that is a wild claim; you are just picking numbers out of your posterior. I am not even sure what you are saying, but again you referenced the poll tax and literacy tests in the previous paragraph. If you think that 80-90 percent of blacks would have been disenfranchised by race-neutral application of those things, you are absolutely nuts and regardless your "figures" are based on nothing mroe than your own misconceptions of how blacks lived at the turn of the century in this country. I really am astonished by the ignorance on display here by a law professor.

Can't see the point. Federalism plus the 14th Amendment beats Federalism alone. Personally, I wish that the States had control against Federal abuses (not merely designated areas of authority, but ability to prosecute -- see Lon Horiuchi -- comparable to the Federal power to prosecute for State abuses.

Historically, that was not vital, because until fairly recently the Federal machine was pretty minor. Go back to, oh, the mid 1960s and the States spent twice as much as the Feds (and half of the Federal budget was for the military, so in terms of domestic programs States had the advantage of the Feds by 4:1). Income tax evasion was the biggest item on the Federal criminal docket. There was little need ... apart from perhaps J. Edgar Hoover ... to create safeguards against Federal abuses; if you were going to get pushed around, treated unjustly, raided, etc., odds were that it was a State official doing it. That's not exactly the case today.

Very interesting. Duke students are being subjected to violations of their civil rights by a rogue DA and your blog is talking about slaves. Timely, that what I call it, will you discuss Nifong's actions a 100 years from now?

At the time of the Founding, a unitary policy on slavery would probably have meant a requirement that slavery be legal all around the nation, since all thirteen original states had legal slavery. During most of the antebellum period (roughly 1790-1860) proslavery forces had much more power in Congress and the executive branch than antislavery ones, and a unitary policy on slavery and/or the rights of free blacks at that time would probably meant a compromise far closer to the slave state laws of the day than the free state ones. In those areas where the federal government did have authority, it tended to use it to promote slavery more than to restrict it.

I find this interpretation implausible, to say the least. Let's remember who thought they were benefitting from states rights: John Randolph of Roanoake, John Taylor of Caroline, John C. Calhoun, Robert Hayne, Jefferson Davis ... need I go on? And why did they demand it? To protect slavery. They said so, and they said it repeatedly. It wasn't abolishionists or anti-slavery moderates like Lincoln or white supremacists like David Wilmot who were screaming about states rights. It was the slaveholders. I think that simple fact demonstrates the biggest flaw in your argument pretty quickly.

The rest of your argument amounts to stating that the federal government was dominated by Southern sympathizers. So it was. But why was it so dominated? Because of the 3/5 clause. There is no evidence at all that the federal government would have been pro-slavery in the absence of that clause.

Now, why was that clause there? Because the Southerners insisted on it at the Convention as the price of Union. There was no chance whatsoever that there was going to be a Union with universal slavery. There was zero political support for that by 1787. Slavery's defenders at the Convention were able to make deals to preserve it in their own states solely because some northerners cared more about commercial activities than the rights of black people and happily traded one for the other. Reimposing slavery in the states which abolished it was never on the table.

During the post-Reconstruction Jim Crow era (roughly 1880-1940), a unitary policy on black rights would also probably have left blacks worse off than they were under federalism. At that time, southern whites cared far more about keeping blacks down than most northern whites cared about protecting their rights (and a significant minority of northern whites actually endorsed the southern position). Therefore, a unitary federal policy on black rights during this time would likely have led to a system slightly less restrictive than that which existed in the South, but far more oppressive than that which existed in northern and western states.

You're just making it up. There's no reason except ideology to conclude that northern Republicans -- who dominated the national government from 1884 to 1932 without much input from Southerners (Solid South) -- would have imposed greater restrictions on their own black citizens. If they had wanted to do so, what stopped them? They controlled not just the federal government, but the northern state governments too. This fact pretty clearly demonstrates that it was considerations of states rights which prevented a uniform policy along northern lines from being imposed nation-wide.

I find this interpretation implausible, to say the least. Let's remember who thought they were benefitting from states rights: John Randolph of Roanoake, John Taylor of Caroline, John C. Calhoun, Robert Hayne, Jefferson Davis ... need I go on? And why did they demand it? To protect slavery. They said so, and they said it repeatedly. It wasn't abolishionists or anti-slavery moderates like Lincoln or white supremacists like David Wilmot who were screaming about states rights. It was the slaveholders. I think that simple fact demonstrates the biggest flaw in your argument pretty quickly.

Most of these people also insisted on broad federal power whenever it might benefit slavery (as in the case of the Fugitive Slave Clause). By contrast, it was Northern states that argued "states' rights" to counter the Clause. The fact that southerners insisted on "states' rights" in other cases does not prove that federalism generally was to the advantage of slavery. at the time. Indeed, as you yourself admit, the federal government was "dominated" by proslavery interests during most of the antebellum period, so any increase in federal power was more likely to be used for proslavery purposes tahn antislavery ones. Nor was this only due to the 3/5 clause (as you suggest), though the Clause certainly made things worse. Large numbers of northern whites were willing to either support slavery or at least go along with it in exchange for southern support on other issues.

The rest of your argument amounts to stating that the federal government was dominated by Southern sympathizers. So it was. But why was it so dominated? Because of the 3/5 clause. There is no evidence at all that the federal government would have been pro-slavery in the absence of that clause.

Now, why was that clause there? Because the Southerners insisted on it at the Convention as the price of Union. There was no chance whatsoever that there was going to be a Union with universal slavery. There was zero political support for that by 1787.

Having no dog in this fight (several ancestors fought in the 49th Illinois, another was an officer in the Army of Northern Virginia, and one "went bushwhacking)...

If we're talking 1787, abolitionism was hardly a major concern in the North. Ben Franklin, before he help found an antislavery society, owned two slaves, in Philadelphia. The real division comes decades later, and concerns the status of the western territories. There was where the obvious compromise -- keep slavery in the slave states, and outlaw it elsewhere -- became impossible.

I've read, never really researched it, that the 3/5 clause was desired by slave states to keep their *population down*. The obvious alternative was 1/1. At the outset of the Republic, losing political power was a good tradeoff for losing tax burden (since taxes were allocated by state population, and the Revolutionary War debts had to be paid off).

There's no reason except ideology to conclude that northern Republicans -- who dominated the national government from 1884 to 1932 without much input from Southerners (Solid South) -- would have imposed greater restrictions on their own black citizens. If they had wanted to do so, what stopped them? They controlled not just the federal government, but the northern state governments too. This fact pretty clearly demonstrates that it was considerations of states rights which prevented a uniform policy along northern lines from being imposed nation-wide.

Northern Republicans had little interest in liberalizing Jim Crow in the South during the 1884-1932. They had no particular desire to impose Jim Crow on the North, either. But if a unitary policy on race had been adopted during that period, they might have been willing to "trade" this issue to the South in exchange for other considerations. In any event, whatever the Northern Republicans wanted, northern Democrats would certainly have been willing to make such a deal, and they (in alliance with southern Democrats) controlled the balance of power in Congress for much of the 1884-1932 period. I would also note that both Republicans and Democrats did accept Jim Crow-style segregation in the District of Columbia duirng this period. If only "states' rights" prevented desegregation in the South in the early 20th century, why didn't the North at least desegregate DC, which was completely under federal control? The key point is that the South cared intensely about promoting segregation, while the North cared very little about removing it, and a significant minority of northern whites actually shared the southern view.

Who claims that "the history of slavery and Jim Crow 'proves' that federalism is bad for minorities"????

A long line of writers dating back at least to the 1950s, and including people as varied as Arthur Schlesinger, the majority of major con law scholars of the last several decades, prominent political scientist William Riker, and Anne Althouse in the debate which kicked off this series of posts. You can even trace the argument back to Madison's Federalist 10, which claims that oppression of minorities is less likely at the federal level than at the level of the states. The position Eugene and I are criticizing is in fact the dominant view among American academics and intellectuals, though it is less dominant today than a few years ago.

Sorry,you haven't persuaded me."The feds are tainted too: Arguably, black voters have greater power over many state and local governments where they form a large proportion of the population than they do over Congress. But even if African-Americans are, on net, better off with a more powerful federal government, that is not necessarily true of other minorities."

One pernicious use of so-called federalism has been to restrict the power of Congress to legislate to protect minorities and others from discrimination under the Fourteenth Amendment. That "state's rights" has been the rallying cry for supporting both slavery and segregation does suggest that using "federalism" to preclude Congress from acting to protect the rights of African-Americans and others is in fact contrary to the intent of the Radical Republicans who were the Framers of the Fourteenth Amendment. John Noonan has a fabulous book on this topic.

And the Framers of the Fourteenth Amendment also authored important civil rights laws, that, had they been enforced at the time, would have made America a very different place. It was only in the 1960s that 42 USC 1981 was used, as intended, to protect the civil rights of African Americans.

Also, it is important to remember that the racism that prevented African Americans was not based in race-neutral literacy tests but instead was based in racism, pure and simple. And racism to maintain white privilege included the use of violence. James Chaney, Michael Schwerner, and Andrew Goodman, were just three of the many Americans who lost their lives, in the effort to register African Americans to vote and to obtain freedom and equal rights for African American citizens of this country.

Point II makes some sense antebellum, but really seems to be grasping at straws when applied to the late Jim Crow era. What about Article IV, Section 4 (which could also explain Bush v. Gore -- sorry, not my joke).

Sure, the guaranty of a Republican Form of Government has long been toothless, but, when coupled with the Reconstruction amendments, it seems like a more plausible explanation of what was wrong with Jim Crow from a federal perspective. The idea that the Constitution imposes no obligations on elected officials is, after all, of fairly recent vintage.

Most of these people also insisted on broad federal power whenever it might benefit slavery (as in the case of the Fugitive Slave Clause).

Agreed. This was Justin's point in a thread below; it was just as true then as now.

By contrast, it was Northern states that argued "states' rights" to counter the Clause.

Sure they did. With a good deal of irony or even sarcasm. They knew exactly how and why that claim highlighted the hypocrisy of the slaveholders.

Indeed, as you yourself admit, the federal government was "dominated" by proslavery interests during most of the antebellum period, so any increase in federal power was more likely to be used for proslavery purposes tahn antislavery ones.

This was not your original argument. Your original argument was "At the time of the Founding, a unitary policy on slavery would probably have meant a requirement that slavery be legal all around the nation...."

Nor was this only due to the 3/5 clause (as you suggest), though the Clause certainly made things worse. Large numbers of northern whites were willing to either support slavery or at least go along with it in exchange for southern support on other issues.

Without the 3/5 clause, northerners would have dominated the House from the beginning. Adams likely would have won in 1800 (though there are arguments both ways), and the same demographics mean northerners would likely have won many more Presidential elections thereafter. The rest is just speculation.

If we're talking 1787, abolitionism was hardly a major concern in the North.

Agreed. The North had little interest in abolishing slavery in the South. I was making a different point, though, namely that the North would never have agreed to re-impose slavery on itself as the price of union.

I've read, never really researched it, that the 3/5 clause was desired by slave states to keep their *population down*. The obvious alternative was 1/1. At the outset of the Republic, losing political power was a good tradeoff for losing tax burden (since taxes were allocated by state population, and the Revolutionary War debts had to be paid off).

That's not quite right. The issue actually goes back to the Confederation, where the 3/5 formula did have relation to state requisitions. Taxation under the new Constitution was going to be levied on individuals, rather than states, so such a "benefit" would have been less clear. As it turned out, nobody knew what "direct" taxes were and they were never imposed, so the South got a great deal with little or no cost.

Northern Republicans had little interest in liberalizing Jim Crow in the South during the 1884-1932.

I'm not sure exactly what you mean by this. A substantial minority of Northern Republicans in Congress did have that interest and tried repeatedly to do so. See this book for the details.

But if a unitary policy on race had been adopted during that period, they might have been willing to "trade" this issue to the South in exchange for other considerations.

There was nothing to trade. During all of this time, Republicans dominated northern state governments and could have implemented Jim Crow if they had wanted to. During most of the time, they controlled the federal government with majorities made up almost exclusively of northerners. They didn't need Southern votes, which was just as well because they got none.

In any event, whatever the Northern Republicans wanted, northern Democrats would certainly have been willing to make such a deal, and they (in alliance with southern Democrats) controlled the balance of power in Congress for much of the 1884-1932 period.

Democrats controlled the House for only 17.5 years during this period. See chart here. Democrats held the Senate for just 4 years under Cleveland and 6 under Wilson. Republicans controlled it the other 38 years in this period. See chart here.

I would also note that both Republicans and Democrats did accept Jim Crow-style segregation in the District of Columbia duirng this period. If only "states' rights" prevented desegregation in the South in the early 20th century, why didn't the North at least desegregate DC, which was completely under federal control?

That's a fair question, but it's long way to get from this to your original assertion that only principles of federalism prevented greater oppression in the states. If you want to make that claim, you should at least be able to identify some speaker or bill which moved in that direction. Otherwise, the only real evidence is that Republicans weren't prepared to sacrifice much for blacks in the South who couldn't vote for them anyway.

Agreed. The North had little interest in abolishing slavery in the South. I was making a different point, though, namely that the North would never have agreed to re-impose slavery on itself as the price of union.

At the time of the Founding (to which I was referring), the North already had slavery, so there was no question of "reimposition."

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i>Northern Republicans had little interest in liberalizing Jim Crow in the South during the 1884-1932.

I'm not sure exactly what you mean by this. A substantial minority of Northern Republicans in Congress did have that interest and tried repeatedly to do so. See this book for the details.

The fact that a minority of one party in the NOrth tried to attack Jim Crow even after Reconstruction is perfectly compatible with my point that MOST northerners during this period had little or no interest in doing so.

Regarding Democratic power in the federal government, the stats cited by Mark Field himself show that the Democrats controlled Congress and the White House about 1/3 of the time during this period, and could have moved to impose nationwide Jim Crow-like policies during those periods. Had they done so, it's far from clear that the Republicans would have aggressively sought to reverse these policies when they came to power. Indeed, the Democrats DID impose segregation on the federal civil service during the Democratic Wilson Administration (1913-21), and the Republicans made little effort to reverse it when they returned to power in the 1920s. Even in periods when the Republicans controlled Congress (often by small margins) during this time, vote-trading with Democrats was not unheard of and could have resulted in the imposition of nationwide Jim Crow policies.

The treatment of nonwhites in DC (where segregation prevailed), the federal civil service, and other fields under federal control during (e.g. - immigration policy, overseas territories, etc.) is a reasonable guidepost to how blacks would have been treated nationwide under a unitary federal policy.

That's not quite right. The issue actually goes back to the Confederation, where the 3/5 formula did have relation to state requisitions. Taxation under the new Constitution was going to be levied on individuals, rather than states, so such a "benefit" would have been less clear. As it turned out, nobody knew what "direct" taxes were and they were never imposed, so the South got a great deal with little or no cost.

I don't quite "get" that. Northerners would have dominated the House only if slaves did not count at all. If slaves did not count at all, why would the Southerners enter the union, since they would be hugely outnumbered in the House by the Northerners.

Since Ilya does not respond to my pointing out the wildly inaccurate statements in his comment that a majority, if not 90 percent, of blacks in the US were illiterate at the turn of the century, I note that a few minutes of googling reveals that 60-70 percent of Blacks in the South were literate by 1900, with a clear 70 percent by the 19-teens. I leave it to others to make up their own mind as to why Ilya would assume that 90 percent of blacks in the entire nation were illiterate at this time. As I said above, I do not believe Ilya is racist but do believe that because of the political circles he is in, he is less wont to question his instincts on race than he otherwise would be. Further, Ilya's assumptions that neutally applied poll taxes and literacy requirements would disenfranchise 90 percent of Blacks nation-wide quite obviously assumes the absurd: that whites in the North and South would not be hugely disenfranchised as well by these requirements and thus would not stand for them in the first place if they were actually applied to them. Again, Ilya just assumes that all whites would meet those requirements, when again the assumption is fallacious.

What percentage of whites were illiterate in the south in the Jim Crow era? All I know about that society comes from Faulkner, who often wrote about white people that couldn't have passed a basic literacy test or paid any significant poll tax. I think the way that "literacy" requirement worked was that whites got a test a blind man could pass (and I don't mean in braille), and blacks got a test that Booker T. Washington would fail.

At the time of the Founding (to which I was referring), the North already had slavery, so there was no question of "reimposition."

I'm going to have to question this, if by founding you mean the drafting and ratification of the Constitution in 1787-88. By 1787, Vermont and Massachusetts had abolished slavery. Connecticut, Rhode Island, and Pennsylvania had passed gradual emancipation laws. The entire NW territory, source of future states, also had slavery prohibited.

Don't forget, Massachusetts [indirectly] gave us the first amendment. The first amendment was written to prevent efforts of states that did have established churches (Bay State is exhibit A) from attempting to extend such a power to the national level...

Before I respond in detail, it's important to recall the specific claims Prof. Somin makes:

1. That had a unitary government existed at the time of the Founding (1787), it would likely have nationalized slavery.

2. That had a unitary government existed in the period from 1884-1932, the condition of blacks in the northern states would have been worse than it actually was under federalism.

First let's look at the state of slavery in the colonies/states prior to 1787. As Angus has pointed out, Prof. Somin's original point was wrong. The update given is incomplete, since Prof. Somin only acknowledges abolition in MA, but fails to mention VT (technically not a state, but clearly independent since 1777). In addition, PA, RI, and CT had passed gradual emancipation laws. The rest of the north followed suit within 20 years (NH in practice rather than by law).*

To this, let's add some additional points. England abolished slavery in 1772. The importation of slaves was prohibited by NC, MD, DE, GA (! -- later changed its mind), CT, and RI by 1787. VA allowed importations, but taxed them so heavily that there were few in practice. NY and VA greatly liberalized their manumission laws in the early 1780s. Anti-slavery societies began in NY and PA. In the summer of 1787, while the Convention was sitting, the Confederation Congress passed the Northwest Ordinance, banning slavery in the Northwest Territory. Several northerners and a few Southerners (notably George Mason) made anti-slavery speeches at the Convention and a few even suggested separation because of slavery. The Constitution itself deliberately makes no mention of the word.

In short, the evidence is overwhelming that the northern states would NEVER have considered re-imposing slavery on themselves as the price of union. Prof. Somin has no actual evidence to the contrary. No state ever re-imposed slavery after abolishing it (IL came close in 1824). No speaker or pamphleteer argued for a slave nation in 1787.

*Prof. Somin's reference to NY and NJ as "two of the largest and most politically powerful northern states" is anachronistic in 1787. The largest and most influential northern states at that time were MA and PA. NY was in the next tier. NJ was considered a small state, and was behaved as such in the Convention.

Now let's turn to the issue of Jim Crow. Prof. Somin's original post provided no evidence for this claim and made some unconvincing speculation about political "deals". His update raises two reasonable arguments (segregation in DC and in the civil service) and one irrelevant one (immigration laws). Note, though, that segregation in DC and the civil service is the ONLY evidence he has.

Against this is the much more persuasive fact that the Republican party dominated the northern states during this entire period. If those states had implemented Jim Crow, then there would be a good argument that the party might have done so nationally. The fact that the North did NOT do this establishes convincingly that there was no political support in the North for such a policy. This fact alone should suffice to demonstrate the error of the original speculation.

Prof. Somin suggests that the Democratic majorities under Wilson might have acted nationally if there had been a unitary government. No one can rule this out, of course, though a Democratic government with few "federalism" scruples did no such thing in the 1930s. However, that was why I made the earlier point about there being a substantial Republican minority which favored greater rights for blacks in the South. A fortiori, those Republicans would have resisted any imposition of Jim Crow in their home states.

That said, it remains possible that a unitary government in this era might have made matters worse than they were for Northern blacks even in the absence of a full-blown apartheid system. The degree of that "worse" remains unknowable.

To summarize, no evidence whatsoever supports Prof. Somin's speculation about 1787, and there is a great deal of evidence against it. As for the Jim Crow era, I'll agree that nobody can rule out his claim.

Ilya already responded to what you said in the post when talking about people voting with their feet and the need for citizen mobility. In that world, people would be able to (or can) chose which of those states is best for them, and live there. Thus, having the one "bad" state and the one "good" state is better than having one middleground option (federal control) because everybody can choose the better state rather than the middleground.

That is indeed a good argument for federalism, though in practice I don't think many people move from State A to State B based on differences in their laws. Law isn't that important compared to where you grew up, where your relatives live, where your job opportunities are, etc. Thus, except in the rare circumstance where the laws of one state have a catastrophically negative impact on you (e.g. you want to marry someone of a different race and you live in a pre-Loving v. Virginia state that bans interracial marriage) this kind of thing probably doesn't have much impact on someone's choice of where to live.

I was putting forward something more akin to the way I perceive lay people (any many lawyers) to view the subject, which is to say they see only policy outcomes (for the most part) and questions of federalism are for the most part invisible in that process. In other words, if you feel strongly position X is the correct position to take on a particular issue, you're fine with the idea that the feds should impose that position on a national basis, and hence you favor more federal power on that issue if you live in a state that doesn't adopt that view. Conversely, if you live in a state that adopts position X, but few other states do, and there's little chance that the feds will take that position (and might even prohibit position X) then you favor more state power.

This seems to me like a good response to the Jim Crow argument. We all know now that "states rights" for many people at that time was just a code phrase to cover up the fact that proponents of that slogan just didn't like the Civil Rights Act of 1964 and other federal attributes of that era. Heck, I've come around to the view that even today, many Republicans elected from 1980 onwards only paid lip service to federalism and had no intention of moving off the "Congress can regulate anything" position of the Democrats. No Congress that took federalism seriously would support things like the Terri Schiavo law or allow an unelected federal A.G. to just declare by fiat that a state statute was invalid (Gonzales v. Oregon).

So let's have a genuine commitment to federalism, not a fake one and Jim Crow is no objection to that, since that was an example of a fake commitment to federalism. I will say that the term "states rights" is probably not a good choice, given its history, but then I never liked that term anyway. I prefer the term "federalism."

Although pro-slavery forces laid claim to the rhetoric of states' rights, and that has tainted the politics of federalism to this day, it is important to keep in mind that not only was the federal govenrment complicit in the machinery of slavery, but also that it was state politics that was the fountainhead, laboratory, and proving ground of the abolition movement in the United States.

As to whether the unitary policy of a dominant federal government would have been pro- or anti-slavery, I think Ilya's suggestion that it would have tended to favor the status quo is supported by the 225-year history of federal politics driven by the reconciliation and protection of opposing vested interests. At the same time, I think you can make the case that the resolution of the slavery issue depended on the vibrant federalism that produced the more combative, confrontational dialectic between the pro- and anti-slavery States to force the issue, which was resolved, after all, by the the War Between the States, not the Federal Police Action Against the South.

Since Ilya does not respond to my pointing out the wildly inaccurate statements in his comment that a majority, if not 90 percent, of blacks in the US were illiterate at the turn of the century,

I did NOT say that a majority of blacks or 90 percent were illiterate at the turn of the century. I said that a neutral application of the combination of southern laws meant to suppress black voting - including the poll tax and literacy tests that went well beyond basic literacy (including, for example, requiring people to interpret provisions of state constitutions), would have disenfranchised the vast majority of blacks nationwide. I never said that a basic literacy test alone would do so.

Well, since the no cost option has already been put forth, let me repeat, if slavery, Jim Crow and all that stuff is bad (seems to be pretty unanimous) what real recompense are you willing to make (and please remember, there are a lot of people around who were negatively affected to the benefit of others.

To this, let's add some additional points. England abolished slavery in 1772. The importation of slaves was prohibited by NC, MD, DE, GA (! -- later changed its mind), CT, and RI by 1787. VA allowed importations, but taxed them so heavily that there were few in practice. NY and VA greatly liberalized their manumission laws in the early 1780s. Anti-slavery societies began in NY and PA. In the summer of 1787, while the Convention was sitting, the Confederation Congress passed the Northwest Ordinance, banning slavery in the Northwest Territory.

Laws against slave importation benefited existing slaveowners by raising the price of their slaves. They were only partly anti-slavery in nature. The Northwest Ordinance is a better point, but of course it was coupled with allowing the expansion of slavery in the new southwestern territories. There were indeed advocates of manumission at the time, in the South as well as the North. They were, however, offset by the political power of the slaveowners, and of course outnumbered by the many people who did not care much about slavery one way or another.

In short, the evidence is overwhelming that the northern states would NEVER have considered re-imposing slavery on themselves as the price of union. Prof. Somin has no actual evidence to the contrary. No state ever re-imposed slavery after abolishing it (IL came close in 1824). No speaker or pamphleteer argued for a slave nation in 1787.

All of this "evidence" is based on a situation where there did NOT have to be a unitary policy on slavery. If there had been, the North might well have chosen slavery as the price of union. Since there was in fact a federalist approach to slavery, they didn't need to consider the possibility of a unitary policy and that is why no one argued for one (assuming, in fact, that no one did).

*Prof. Somin's reference to NY and NJ as "two of the largest and most politically powerful northern states" is anachronistic in 1787. The largest and most influential northern states at that time were MA and PA. NY was in the next tier. NJ was considered a small state, and was behaved as such in the Convention.

NY was the third largest northern state in population in 1790, just slightly behind MA (340,000 vs. 378,000). NJ was 4th or 5th. That certainly qualifes them as "two of the largest and most politically powerful" - the latter because both of course were crucial to the success of the Union. See here for population stats.
Now let's turn to the issue of Jim Crow. Prof. Somin's original post provided no evidence for this claim and made some unconvincing speculation about political "deals". His update raises two reasonable arguments (segregation in DC and in the civil service) and one irrelevant one (immigration laws). Note, though, that segregation in DC and the civil service is the ONLY evidence he has.

Since this is the ONLY evidence anyone has about the federal government's policies on segregation during this period (since it was the only area where the federal government fully controlled the issue), I'd say it's pretty persuasive. Furthermore, immigration policy is very much relevant as evidence of the kind of racist attitudes that might have led many northern whites to support or at least acquiesce in Jim Crow-like policies.

Against this is the much more persuasive fact that the Republican party dominated the northern states during this entire period. If those states had implemented Jim Crow, then there would be a good argument that the party might have done so nationally. The fact that the North did NOT do this establishes convincingly that there was no political support in the North for such a policy. This fact alone should suffice to demonstrate the error of the original speculation.

Not true at all. There was a minority of northern whites who supported segregation, but not enough to implement it at the state level. However, if there had been a unitary national policy on segregation, that northern minority could have combined with the overwhelming majority of southern whites who favored Jim Crow to impose a similar (though, as I noted) probably less harsh policy on the nation as a whole. 90% of southern whites + about 30% of northern and western whites would easily have been a winning political coalition - especially when you consider that the pro-segregation whites had a much more intense commitment to the issue than the anti-segregation ones.

Prof. Somin suggests that the Democratic majorities under Wilson might have acted nationally if there had been a unitary government. No one can rule this out, of course, though a Democratic government with few "federalism" scruples did no such thing in the 1930s. However, that was why I made the earlier point about there being a substantial Republican minority which favored greater rights for blacks in the South. A fortiori, those Republicans would have resisted any imposition of Jim Crow in their home states.

I agree that there was a Republican minority that favored more rights for blacks, even in the SOuth. But post-Reconstruction it was just that - a small minority. The majority of northern Republicans in the early twentieth century were indifferent to the issue of black rights, and some actually accepted the Southern, pro-segregationist view.

As for the 1930s, what the Democrats did and didn't do then is not much evidence of what they might have done earlier under a unitary government. The 1930s was the era of the Great Depression, and the Democrats (and others) were focused on that issue and could not realistically put a lot of political capital into changing policy on racial issues. Moreover, the Democratic coalition of the 1930s was different from and broader than that which existed earlier, and included many former Republicans in the North. The FDR administration deliberately subordinated racial issues in order to focus on other parts of its agenda. Not so with the pre-New Deal Democrats, as shown by the Wilson Administration's segregation of the federal civil service.

fails to mention VT (technically not a state, but clearly independent since 1777).

Since Vermont was not a state until several years after the Founding, it did not participate in the constitutional convention or in the ratification process and was not represented in Congress, and therefore could not have influenced the new governments decisions on slavery policy.

Since Vermont was not a state until several years after the Founding, it did not participate in the constitutional convention or in the ratification process and was not represented in Congress, and therefore could not have influenced the new governments decisions on slavery policy.

Given the legendary stubborness of Vermonters, I think you underestimate the extent to which they would have resisted the re-imposition of slavery within their territory.

I agree that there was a Republican minority that favored more rights for blacks, even in the SOuth. But post-Reconstruction it was just that - a small minority.

The size of this minority varied over time. In the early 1890s it fell just a few votes short of important civil rights statutes. Later on, of course, the Republicans gave up and moved on to other issues, but there is a very important distinction between (a) ending the effort to advance equality in the South, and (b) allowing the extension of Southern practices to the North. The dispute over slavery in the Territories in the 1850s gives a pretty good sense of the importance of that distinction.

As for the 1930s, what the Democrats did and didn't do then is not much evidence of what they might have done earlier under a unitary government.

All things considered, this might be the most complimentary thing any blogger here has ever said about FDR.

Since this is the ONLY evidence anyone has about the federal government's policies on segregation during this period (since it was the only area where the federal government fully controlled the issue), I'd say it's pretty persuasive.

Not really. The real test would have been the political reaction if the federal government had attempted to impose Southern practices on the North. The likely resistance there can be seen from previous experience and from the lack of any similar legislation in northern states controlled by Republicans. You've made a fair point, but it doesn't carry as much weight as you're giving it.

NY was the third largest northern state in population in 1790, just slightly behind MA (340,000 vs. 378,000). NJ was 4th or 5th. That certainly qualifes them as "two of the largest and most politically powerful" - the latter because both of course were crucial to the success of the Union.

The debates in the Convention consistently refer to the "three" large states (MA, PA, and VA). NY was not included in that category, though it certainly was a wannabe. As for NJ, it was an aggressive member of the small state coalition -- it was, after all, the New Jersey Plan which was proposed in opposition to the VA Plan and which led to the Compromise giving equal representation in the Senate.

All of this "evidence" is based on a situation where there did NOT have to be a unitary policy on slavery. If there had been, the North might well have chosen slavery as the price of union.

Again, this is just speculation. Here's another suggestive piece of evidence: in the Convention, Gouvenour Morris suggested that North and South go their separate ways because their attitudes toward slavery were irreconcilable. If your view were correct, isn't it likely that someone, anyone, would have argued in response that it would be better to nationalize slavery?

Laws against slave importation benefited existing slaveowners by raising the price of their slaves. They were only partly anti-slavery in nature.

Yes, their effect depends on supply and demand. In VA they did have this effect. In all other states it was the opposite. In the North the non-importation statutes worked in conjunction with the overall aboliton movement there and were anti-slavery. In SC and GA, the working conditions were so harsh that imports were essential to the long-term survival of the institution. In the long run, though, it's pretty hard to characterize a supply restriction as anything other than "antislavery".

No one will ever know what would have happened if slave imports had been banned in 1787. George Mason believed that the additional 20 years allowed in the Constitution would make the situation irreversible. He was in a good position to know.

Against this is the much more persuasive fact that the Republican party dominated the northern states during this entire period. If those states had implemented Jim Crow, then there would be a good argument that the party might have done so nationally. The fact that the North did NOT do this establishes convincingly that there was no political support in the North for such a policy. This fact alone should suffice to demonstrate the error of the original speculation.

You make a categorical error here, Mark. This fact doesn't prove anything, because it's wrong. What it establishes convincingly is that there was no (that is, not a majority) demand in the North for such a policy. It shows nothing about whether there was "support" for such a policy. (Ilya's argument with regard to DC illustrates the difference.)

Except for a brief post-civil war period (and the modern post-civil rights era), the history of the U.S. shows that the U.S. was made up of three groups: the small number of civil rights supporters, the significant number of anti-black people, and the plurality of people who were indifferent, who were willing to trade away black rights in exchange for things they cared about. Like establishing the Constitution. Like preserving the union. Like electing Rutherford Hayes to the presidency. You're mistakenly assuming that the third group doesn't exist, that everyone falls into one of the first two categories.

You mention the nineteenth century persecution of Mormons. I'd like to clarify this-- both the states and Federal Government were guilty, but the Feds were a lot more humane about it. For example, Missouri Gov. Lilburn Boggs' 'extermination order' which placed a bounty on the killing of any member of the Church who did not leave the state has no Federal parallel for plain violence and brutality.

What it establishes convincingly is that there was no (that is, not a majority) demand in the North for such a policy. It shows nothing about whether there was "support" for such a policy.

In any reasonably democratic system -- and the northern states of that time qualified -- lack of demand pretty much equals lack of support. Had there been "support", Democrats would have done far better in northern states than they actually did.

You're mistakenly assuming that the third group doesn't exist, that everyone falls into one of the first two categories.

I don't think so. I think that you're making a mistake in identifying only 3 categories. There's at least one more: the one which says "this far but no farther". It's that category which, IMO, Prof. Somin is mistakenly arguing would have, in fact, gone farther.

In any reasonably democratic system -- and the northern states of that time qualified -- lack of demand pretty much equals lack of support. Had there been "support", Democrats would have done far better in northern states than they actually did.

That's not even close to true. Consider (as an example off the top of my head; there may be better ones) gay marriage in Massachusetts before Goodridge. There wasn't public demand (*) to legalize gay marriage. But once it was imposed by the SJC, there's support for it. (Or, more to the point, there's not sufficient opposition to it.)

There's an awful lot of public policy that people are just indifferent to. They're not going to crusade for it; they aren't going to reward politicians who promise it. But if other people want it, they're not going to fight it, either.

(*) To be clear, when I'm saying "wasn't public demand," I don't mean that there was zero demand; I mean that the public as a whole wasn't demanding it.

Let's step back and look at the original claim. Suppose we have unitary government. In that case, in 1787, there would have been three possibilities:

1. Slavery everywhere.
2. Slavery nowhere.
3. Splitup of the country, with slavery in the south but not the north.

Which are you arguing would have happened? Obviously you're denying that the north would have accepted slavery, even though it mostly allowed slavery at the time. Are you seriously contending the south would have abolished slavery in order to keep the union together? Or are you saying that if the South said, "If you touch slavery, we're walking out," that the north would have said, "Fine. Don't let the door hit your asses on the way out"?

If the last, are you saying that this would have been an improvement on the federalist approach? Would blacks really have been better off with a slave-holding south and a free north? (On the one hand, they might have had to flee a shorter distance to escape slavery. But on the other hand, maybe not; much of the north wasn't very welcoming of blacks. If large numbers of slaves had escaped there, they might have preferred to ship them back south. And wouldn't slavery in the south have likely lasted a lot longer than 1865?)

Or, to reiterate, are you actually contending the country would have abolished slavery?

Obviously you're denying that the north would have accepted slavery, even though it mostly allowed slavery at the time.

I am denying that. If you have evidence that ANYONE at that time made such a proposal, I'd be happy to see it. Didn't happen. And lots of other evidence strongly supports my conclusion.

For the record, your premise is wrong. Five of the 9 northern states (DE, PA, NJ, NY, CT, RI, MA, NH, and VT) had either abolished slavery outright or had passed gradual emancipation acts. NH had essentially no slaves -- only 46 in 1786.

So that we're clear, my view is as follows. If there had been a "unitary" government demanded at that time with the power to eliminate slavery, IMO the South would have formed a separate union. Ditto for the North if the "unitary" government had the power to impose slavery. Slavery was then and remained ever after the one uncompromisable issue.

are you saying that this would have been an improvement on the federalist approach?

No, that's a stronger argument than I'm making. I'm simply denying Prof. Somin's argument that a unitary government at that time would have nationalized slavery. I have no idea what would have happened if there had been separate unions. Probably a war eventually, but counterfactual history is not something I think about much.

I am denying that. If you have evidence that ANYONE at that time made such a proposal, I'd be happy to see it. Didn't happen. And lots of other evidence strongly supports my conclusion.

Why would anyone have "made such a proposal" since we didn't have a unitary system? There was no need for such a proposal.

For the record, your premise is wrong. Five of the 9 northern states (DE, PA, NJ, NY, CT, RI, MA, NH, and VT) had either abolished slavery outright or had passed gradual emancipation acts. NH had essentially no slaves -- only 46 in 1786.

For the record, my premise isn't wrong; yours is. First, (as has been pointed out already) VT wasn't a state and didn't get to participate in the constitutional convention, so it has no relevance to this discussion, which already drops it to 4 of 8, though I'm not sure why Delaware is a "northern" state in this discussion.

Second I think you overestimate the significance of "gradual emancipation" laws. If I pass a law banning something in twenty or thirty years (which is what the laws to which you refer did), after rejecting efforts to outlaw slavery (e.g., CT), to you really think I'm going to the mat to fight for abolitionism? (If Congress passes a law tomorrow outlawing something in 2030, do you really read vehemence into this vote?)

By the time of the civil war, slavery had been gone for a generation in most of the North, and anti-slavery sentiment might have been dominant; at the time of the ratification of the constitution, though, it was still an extant institution everywhere except Massachusetts; at most, it was going to be gone in a few decades. Keeping it would not, contrary to what you have said, been "reimposing" it in the North. It would just have been retaining it. It wouldn't have been a wrenching change. (And indeed, given the relatively small number of slaves throughout much of the north -- as you note wrt NH -- it would barely have been noticed.)

I find Greedy Clerk's logic interesting. Literacy tests and poll taxes are bad because they disenfranchise way too many minorities, right? But you're a racist if you think they would have disenfranchised more than X percent? Not just wrong, but racist.

Greedy Clerk says a simple Goggle search yielded that literacy among Southern blacks was 60-70%. That means that the absolute minimum of blacks disenfranchised JUST by the literacy test is 30-40%. Of course the literacy tests did more than measure basic literacy, as Somin says they required people to interpret parts of the state constitution. So add at least another 10-20% to that. Now we come to the poll tax, would it be unreasonable to say it disenfranchised between 10-30% of blacks? So we have a number somewhere between 50-90 percent when we add up all the different effects, rather than only looking at basic literacy. Further, the 80-90% figure does not seem outlandish if Somin is correct that the actual (and non-neutrally applied) result was 95-99%.

A pretty pathetic attempt to paint Somin as a racist, Greedy Cleark. I'd assume that if Somin under-estimated the number of black disenchfranchisement he'd ALSO be a racist. Unless he agrees with you about the precise numbers of blacks disenfranchised, he is a victim of unconscious racism? Finally, what do you think would be the result, 55-60 percent sound about right? Or is that getting into racist territory? What's the magic non-racist number, Greedy?

Of course the literacy tests did more than measure basic literacy, as Somin says they required people to interpret parts of the state constitution.

Why would we assume blacks would be worse at constitutional interpretation than whites? Constitutions have plenty of pedestrian provisions in them, such as the eligibility requirements for elective office and so forth; tricky questions of constitutional interpretation generally involve adjudications -- but I doubt the tests would consist of asking potential voters to draft advisory opinions on possibly conflicting clauses or competing values enshrined in the Constitution, so the questions couldn't be all that tricky. Also, there is no reason to believe anyone but lawyers or those with particular knowledge of the law would get such questions right -- certainly not the majority of whites. So the assumption that most blacks wouldn't pass and most whites would just doesn't make sense unless there's an extra racial component to the assumption. That's what Greedy Clerk is pointing out.

Somin has an easy out. He could easily say that the content of tests of constitutional interpretation is irrelevant; racist whites would just flunk blacks on open questions of law -- if it's only a matter of subjective interpretation, there is no right answer.

"Why would we assume blacks would be worse at constitutional interpretation than whites?"

OK, one can't have it both ways, which should be obvious to Captain Obvious. One can't say that literacy tests are bad because they disproportionately disenfranchise blacks and then try to paint anybody who accepts this premise as racist. I'm sure the NAACP and the ACLU would have no problem instituting literacy tests on voters, would they? Are they racist too?

Why would anyone have "made such a proposal" since we didn't have a unitary system?

It would have been an obvious response to suggestions that the two parts of the country go their separate ways. There were 4 options:

1. Universal freedom in one union.
2. Universal slavery in one union.
3. Each state decides for itself in one union.
4. Two or more unions.

Slavery was criticized in the Convention. The suggestion was made to separate amicably. Nobody defended slavery, nobody suggested universalizing it.

Look, Prof. Somin made a (very unflattering) claim about what Northerners might have done in 1787. He has supplied not a scintilla of evidence for that claim, and neither has anyone else. I suggested what one such piece of evidence might look like. There are others. The point is, before making such a claim, it might be nice to have some evidence for it.

First, (as has been pointed out already) VT wasn't a state and didn't get to participate in the constitutional convention, so it has no relevance to this discussion

I didn't respond to this earlier because I didn't take it seriously as an argument. The point is not whether VT was a state, but whether it was asked to ratify the Constitution (or, in our hypothetical, would have been asked to ratify one reimposing slavery there). For purposes of this discussion VT counts just as much as MA.

If I pass a law banning something in twenty or thirty years (which is what the laws to which you refer did), after rejecting efforts to outlaw slavery (e.g., CT), to you really think I'm going to the mat to fight for abolitionism?

Yes, and for two reasons. One is that some slaves (not very many) had already been freed under the gradual laws. More important, though, is the mental state of the voters in those states. They had made the transition to freedom, made a moral commitment. They understood it as such. There was no going back, any more than we today are likely to reimpose Jim Crow.

Again, you continue to argue from logic rather than from evidence. If the decision were as easily reversible as you suggest, why didn't one of those states re-impose slavery subsequently? The option was always legally available. Racism actually increased in the first half of the 19th C; some of those states (NJ, NY, PA) regularly voted with the South in national politics. They didn't do it and there's no evidence that they would have done it.

Since we're discussing a counterfactual, it's rather difficult to provide "evidence." Ilya supplied the only evidence in this argument -- regarding DC, the place that was governed by a unitary government -- and you dismissed it. (You're not presenting evidence of your proposition -- that they wouldn't have accepted a retention of slavery --either. You're just arguing that it's logical to assume that if they voted to eventually abolish it, they wouldn't have accepted it.)

If the decision were as easily reversible as you suggest, why didn't one of those states re-impose slavery subsequently? The option was always legally available. Racism actually increased in the first half of the 19th C; some of those states (NJ, NY, PA) regularly voted with the South in national politics. They didn't do it and there's no evidence that they would have done it.

Your question makes the exact same mistake I identified earlier. Why didn't one of those states re-impose slavery? Because there was no public demand for it in the north. But that is a separate question from whether the north would have accepted it in order to get something else they wanted.

As for Vermont, your argument makes no sense. The issue here is what would have happened if we had a unitary government -- would it have adopted national slavery. Vermont didn't get to decide on that point. It wasn't asked to ratify the constitution; the constitution came into effect before it got any say in the matter. You may argue that Vermont wouldn't have joined the U.S. if slavery were national -- that's possible. But it wouldn't have changed the status of slavery anywhere else in the country. The original 13 weren't going to abolish slavery in order to bring Vermont in; there's a big difference between trying to entice Vermont and trying to retain Georgia, the Carolinas, Virginia, Maryland, and Delaware.

Ilya supplied the only evidence in this argument -- regarding DC, the place that was governed by a unitary government -- and you dismissed it.

That was his evidence on his second claim (Jim Crow). He submitted none on his first claim (1787). I've submitted evidence on both, a great deal of it on the first claim.

But that is a separate question from whether the north would have accepted it in order to get something else they wanted.

As I already said, I don't think there was anything the South had to offer which could have made the North accept slavery by 1787. So far, Prof. Somin has not has suggested what that quid pro quo might have been and neither have you.

It wasn't asked to ratify the constitution; the constitution came into effect before it got any say in the matter.

You may argue that Vermont wouldn't have joined the U.S. if slavery were national -- that's possible. But it wouldn't have changed the status of slavery anywhere else in the country. The original 13 weren't going to abolish slavery in order to bring Vermont in; there's a big difference between trying to entice Vermont and trying to retain Georgia, the Carolinas, Virginia, Maryland, and Delaware.

Your inclusion of "the Carolinas" pretty seriously undercuts your argument, since NC was in exactly the same situation as VT.

In any case, isolating VT out of the group isn't really responsive to my point. The point is that over half the North had made the commitment against slavery. You have yet to show what "incentive" could have reversed that commitment. The historical evidence is clear: nothing.

Part of the problem is that there were so few Founders who actually favored a unitary government. Let's take a closer look at the one Founder who unambiguously DID favor a unitary national government, Alexander Hamilton.

We know that this was an important issue for Hamilton. He made a long speech at the Convention advocating it, knowing that nobody else agreed. Would he have accepted slavery as the cost of such a government?

We can approach this two ways. One is to ask whether he was willing to compromise his ideal unitary government for other reasons. We know that he was because he actually did. He didn't just compromise, he worked very hard for ratification of a Constitution that was pretty far from his ideal.

Another is to look at his views on slavery. We know at least the following:

1. Hamilton's best fried was John Laurens, a romantic anti-slavery advocate from SC.

2. Hamilton himself made a number of anti-slavery comments in various letters and documents over the years.

3. Hamilton was a founder of the New York Manumission Society in 1785, just two years before the Convention. This Society "kept up a relentless pressure of economic intimidation. It hectored newspaper editors against advertising slave sales, pressured auction houses and ship-owners, and gave free legal help to slaves suing their masters. This effort, along with a booming birth rate and a flood of white workers from other states who did not have to be maintained during periods of unemployment and were willing to work for low wages, made slavery economically obsolete." Cite.

4. Hamilton, in stark contrast to Jefferson, made complimentary comments regarding the abilities of blacks, judging them equal to whites.

Given this evidence, I see no basis for asserting that Hamilton would have accepted slavery in a unitary government. It should go without saying, but I'll say it anyway -- Hamilton is an a fortiori case. If not him, then not anyone.

As I already said, I don't think there was anything the South had to offer which could have made the North accept slavery by 1787. So far, Prof. Somin has not has suggested what that quid pro quo might have been and neither have you.

You have already said that -- but all you've offered is what you "don't think," not evidence. The fact that slavery was legal in most states in the North in 1787 (in some states, entirely legal; in other states, legal but "gradually" becoming illegal) is powerful evidence that the North had "accepted slavery."

As for what the quid pro quo might have been, union itself. (Else, why compromise at all, which they did?)

This will come as news to VT.

You might want to check the date on that, Mark. The Constitution took effect three years earlier than that. I'm not saying that Vermont didn't have to accept the constitution to become a state; I'm saying that Vermont didn't have to accept the constitution for the constitution to exist. Nobody cared what Vermont thought -- as evidenced by the fact that Vermont wasn't invited to the convention.

Your inclusion of "the Carolinas" pretty seriously undercuts your argument, since NC was in exactly the same situation as VT.

It was, of course, not. It was not a pre-existing independent nation; it was one of the states in the confederation. It was not an outsider; it was a participant at the convention. It was part of the denominator in the fraction of states needed to ratify the constitution before the constitution took effect. And unlike Vermont, all it had to do in order to become a part of the constitution was ratify it; Vermont, on the other hand, had to be admitted by Congress.

This indeed is cloud cuckoo land. It did not matter how literate blacks were, the clerks who interpreted the literacy tests failed them. Period. There are any number of stories of blacks with advanced degrees from research universities being failed on literacy tests in the South. This example is quite instructive.

I know I said I was done, but this is too good to pass up. I came across it yesterday by chance.

In 1785, Dr. Richard Price (a famous English liberal) sent Thomas Jefferson an anti-slavery/emancipation pamphlet and asked Jefferson for his views. Here, in relevant part, is Jefferson's reply (Aug. 7, 1785):

"Northward of the Chesapeake, you may find, here and there, an opponent to your doctrine, as you may find, here and there, a robber and murderer; but in no greater number. In that part of America, there being but few slaves, they can easily disencumber themselves of them; and emancipation is put into such a train, that in a few years there will be no slaves northward of Maryland."